Divorce in Arlington County, Alexandria, Fairfax County, and Prince William County, Virginia
Virginia law recognizes two types of divorce: Divorce from Bed and Board (“divorce a mensa et thoro”) and a Divorce from the Bond of Matrimony (“divorce a vinculo matrimonii”).
A Divorce from the Bond of Matrimony is a final or absolute divorce allowing the parties to remarry once the decree is entered by the court. Regardless of whether a Divorce from the Bond of Matrimony is based on a no-fault or fault ground, either spouse must have lived in Virginia for six months before he/she can file for a divorce in Virginia. The grounds for a Divorce from the Bond of Matrimony are discussed more fully below.
A Divorce from Bed and Board is a partial or qualified divorce under which spouses are legally separated from each other but are not permitted to remarry. A spouse is not required to obtain a Divorce from Bed and Board prior to seeking a Divorce from the Bond of Matrimony. A person granted a Divorce from Bed and Board, however, may ask the court to “merge” the decree into a Divorce from the Bond of Matrimony after at least one year has passed from the date the parties separated.
No-Fault Divorce
A Divorce from the Bonds of Matrimony may be based on separation. This is the most common ground for divorce and it is often referred to as a “no-fault” or “uncontested” divorce. In order to establish “legal separation” for purposes of a divorce, the parties must live separate and apart without cohabitation for a period of one year. If the spouses have entered into a Property Settlement or Separation Agreement and there are no minor children, the time period is reduced from one year to six months.
A Property Settlement Agreement is a written contract between the spouses that sets forth their rights, duties and obligations arising out of their separation and divorce. The Agreement may address issues concerning the division of property, spousal support, child custody and visitation, child support, and attorney’s fees. These agreements allow the spouses to amicably settle their respective rights rather than having a court rule upon the issues in the case.
Fault Divorce
When one spouse requests that a court grant a Divorce from the Bonds of Matrimony based on some fault of the other spouse, he/she is seeking a fault divorce. The most common grounds in Virginia are:
- Adultery, Sodomy, or Buggery
- Conviction of a Felony
- Desertion Plus One Year Separation
- Cruelty Plus One Year Separation
Adultery, Sodomy, or Buggery
Direct evidence of sexual relations with another person is not required to prove adultery; rather, circumstantial evidence is sufficient. The evidence, however, must be strict, satisfactory and conclusive that the other spouse did in fact engage in sexual relations with another person. Suspicion or speculation is not enough. While Virginia law does require some corroboration of the testimony of a spouse to prove adultery, direct, “eyewitness” testimony as to the adulterous acts is not required.
Sodomy is a sexual act, other than intercourse, such as oral or anal sex. To be grounds for divorce, it must be committed with someone outside the marriage. The standard of proof for these grounds is the same as that for adultery.
Buggery is bestiality or a sexual act against nature. The standard of proof for these grounds is the same as that for adultery.
Conviction of a Felony
If a spouse has been convicted of a felony, sentenced to confinement for more than one year and is in fact confined, then the other spouse may assert this ground as a basis for an absolute divorce so long as he/she does not resume cohabitation with the guilty spouse after knowledge of the confinement.
Desertion Plus One Year Separation
Desertion or abandonment requires both the breaking off of cohabitation and the intent to desert in the mind of the deserting spouse. The spouses must not have lived together for at least one year in order for a court to grant a Divorce from the Bond of Matrimony.
If a spouse leaves the marital home because the other spouse has committed acts that legally amount to cruelty, then the spouse who leaves is not guilty of desertion. Rather, the spouse who leaves may be awarded a divorce on the ground of cruelty or constructive desertion. Again, the spouses must not have lived together for at least one year in order for a court to grant a Divorce from the Bond of Matrimony.
When the act of desertion occurred less than one year from the filing of the divorce petition, only a Divorce from Bed and Board can be granted by a court.
Cruelty Plus One Year Separation
Cruelty as a ground for divorce requires acts that tend to cause bodily harm and make living together unsafe. Generally, rude words alone are not sufficient to establish cruelty. When one spouse abuses the other spouse physically, emotionally, or mentally and the spouses have not lived together for at least one year, then the abused spouse may seek a Divorce from the Bond of Matrimony based on cruelty.
When the act of cruelty occurred less than one year from the filing of the divorce petition, only a Divorce from Bed and Board can be granted by a court.
If you are considering divorce in Virginia, contact the attorneys at Patel & Williams for a consultation.